Rule2022-17699
Limited Applicability of Consumer Financial Protection Act's “Time or Space” Exception With Respect to Digital Marketing Providers
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Published
August 17, 2022
Effective
August 17, 2022
Issuing agencies
Consumer Financial Protection Bureau
Abstract
Section 1002 of the Consumer Financial Protection Act of 2010 (CFPA) defines the term "service provider" and sets forth two exceptions to that definition. Under one of those exceptions, a person is not a service provider solely by virtue of such person offering or providing to a covered person time or space for an advertisement for a consumer financial product or service through print, newspaper, or electronic media. The Consumer Financial Protection Bureau (Bureau or CFPB) is issuing this interpretive rule to address digital marketing providers that commingle the targeting and delivery of advertisements to consumers, such as by using algorithmic models or other analytics, with the provision of advertising "time or space." Digital marketing providers that are materially involved in the development of content strategy would not fall within the "time or space" exception as interpreted by the Bureau. Accordingly, digital marketing providers that are involved in the identification or selection of prospective customers or the selection or placement of content to affect consumer engagement, including purchase or adoption behavior, are typically service providers under the CFPA.
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<title>Federal Register, Volume 87 Issue 158 (Wednesday, August 17, 2022)</title>
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[Federal Register Volume 87, Number 158 (Wednesday, August 17, 2022)]
[Rules and Regulations]
[Pages 50556-50560]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17699]
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CONSUMER FINANCIAL PROTECTION BUREAU
12 CFR Chapter X
Limited Applicability of Consumer Financial Protection Act's
``Time or Space'' Exception With Respect to Digital Marketing Providers
AGENCY: Consumer Financial Protection Bureau.
ACTION: Interpretive rule.
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SUMMARY: Section 1002 of the Consumer Financial Protection Act of 2010
(CFPA) defines the term ``service provider'' and sets forth two
exceptions to that definition. Under one of those exceptions, a person
is not a service provider solely by virtue of such person offering or
providing to a covered
[[Page 50557]]
person time or space for an advertisement for a consumer financial
product or service through print, newspaper, or electronic media. The
Consumer Financial Protection Bureau (Bureau or CFPB) is issuing this
interpretive rule to address digital marketing providers that commingle
the targeting and delivery of advertisements to consumers, such as by
using algorithmic models or other analytics, with the provision of
advertising ``time or space.'' Digital marketing providers that are
materially involved in the development of content strategy would not
fall within the ``time or space'' exception as interpreted by the
Bureau. Accordingly, digital marketing providers that are involved in
the identification or selection of prospective customers or the
selection or placement of content to affect consumer engagement,
including purchase or adoption behavior, are typically service
providers under the CFPA.
DATES: This interpretive rule is effective on August 17, 2022.
FOR FURTHER INFORMATION CONTACT: Christopher Davis, Attorney-Advisor;
Office of Fair Lending and Equal Opportunity, at
<a href="/cdn-cgi/l/email-protection#296a6f796b766f48405b654c474d40474e694a4f594b074e465f"><span class="__cf_email__" data-cfemail="14575244564b52757d6658717a707d7a7354777264763a737b62">[email protected]</span></a>, or Brad Lipton, Senior Counsel, Legal
Division, at 202-435-7000. If you require this document in an
alternative electronic format, please contact
<a href="/cdn-cgi/l/email-protection#61222731233e2002020412120803080d08151821020711034f060e17"><span class="__cf_email__" data-cfemail="1c5f5a4c5e435d7f7f796f6f757e75707568655c7f7a6c7e327b736a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
Financial services companies rely on digital marketing providers to
target and deliver advertisements across various platforms to consumers
on their behalf. By doing so, financial services companies may be able
to engage with audiences in ways that they were previously unable to
with traditional advertising methods. Many modern digital marketing
providers (or ``digital marketers'') play a dramatically different role
in consumer advertising than did traditional media sources like print
newspapers or radio stations. Many digital marketers target and deliver
ads to specific consumers \1\ using sophisticated analytical
techniques, including machine learning and behavioral analytics, to
process large amounts of consumer data.\2\ In other words, many digital
marketers aggregate and analyze immense amounts of granular consumer
data, and then use that data to determine what advertisements to
provide to specific consumers at what times. Accordingly, digital
marketing providers commingle the service of targeting and delivering
advertisements with the activities of traditional media sources in
providing airtime or physical space.
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\1\ The targeting and delivery of advertisements includes both
the targeting and delivery of certain ads to consumers generally at
specific times to increase or maximize engagement and the targeting
and delivery of ads to specific consumers at specific times. For
instance, a digital marketer may select certain ads to show late at
night to consumers generally. Or a digital marketer may select
certain ads to show late at night to certain consumers.
\2\ See C.A. Summers, R.W. Smith, and R.W. Reczek, ``An audience
of one: Behaviorally targeted ads as implied social labels,''
Journal of Consumer Research, vol. 43, no. 1, pp. 156-178 (June
2016).
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Digital marketing providers obtain data from a variety of sources,
including but not limited to data collected directly from consumers,
for example when registering for an account or when conducting a search
query into a search bar. Further, digital marketers may harvest a wide
variety of consumer data by monitoring and tracking a consumer's web
activity, including for example, their browsing history, their activity
while online, and their geolocation.\3\ (This is sometimes called
``surveillance advertising.'' \4\) Digital marketers may also obtain
data from third-party data brokers or ``second-party'' partnerships
with other companies.\5\ Using these tools and others, digital
marketers collect granular consumer data that they analyze to develop
insights about consumers' behavior more broadly.\6\
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\3\ See Paige M. Boshell, The Power of Place: Geolocation
Tracking and Privacy, Bus. Law Today (Mar. 2019).
\4\ See Shoshana Zuboff, The Age of Surveillance Capitalism: The
Fight for a Human Future at the New Frontier of Power (2019).
\5\ See supra note 3.
\6\ See supra note 2.
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The insights that digital marketing providers develop enable them
to offer financial services companies targeted advertising services.
For example, collected data from individual consumers can be analyzed
by these marketers and used to segment consumers across various
groupings, such as by age, location, or specific interests (e.g.,
``concert goers''). After these categories have been developed, firms
that use digital marketing providers to acquire customers can select
(or exclude) certain types of customers.\7\
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\7\ See id.
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In contrast, digital marketers may also target advertisements at
specific times based on context, i.e., the content that a user is
currently viewing. Such contextual advertisements more closely resemble
traditional ads users might find in other spaces--such as an ad for a
sporting goods store aired during a televised basketball match or a
print clothing ad placed in a fashion magazine--as they are based on
the contents of what is being displayed, not consumer-specific data.
Digital marketers engaged in ad targeting and delivery may operate
the websites or platforms on which ads appear, or they may not. In
either case, digital marketers serve as an intermediary between the
financial services company and consumers.
The ways in which digital marketing providers specifically target
ads are varied and evolve over time. Ultimately, the digital marketer
may decide which group(s) the consumer belongs in and which financial
services companies desire to advertise to that group, and may select
the specific ad to display to that consumer and/or when to display the
ad based on other factors (e.g., the amount a firm is willing to pay to
display the ad). Accordingly, many digital marketing providers are
materially involved in the development of ``content strategy'' \8\ by
identifying or selecting prospective customers and/or selecting or
placing content to affect consumer engagement, including purchasing or
adoption behavior. These activities go well beyond the activities of
traditional media sources, such as print newspapers or radio, that
solely passively provided airtime or physical space for advertisements.
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\8\ Content strategy is ``the strategy for the distribution of
th[e] content'' as well as ``the set of methods and guidelines for
the development and curation of content.'' Christen Geiler,
Information Architecture vs Content Strategy--and Why YOU Need Both,
<a href="http://Digital.gov">Digital.gov</a> (July 18, 2016), <a href="https://digital.gov/2016/07/18/information-architecture-vs-content-strategy-and-why-you-need-both/">https://digital.gov/2016/07/18/information-architecture-vs-content-strategy-and-why-you-need-both/</a>.
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II. Analysis
Service Providers
A person is a ``covered person'' under the CFPA, and thus subject
to that law, including its prohibition on unfair, deceptive, or abusive
acts or practices (UDAAPs), if it offers or provides a financial
product or service for use by consumers primarily for personal, family,
or household purposes.\9\ ``Service provider[s]'' to covered persons
are also subject to the CFPA, including its UDAAP prohibition.\10\
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\9\ See 12 U.S.C. 5481(5), (6), (15)(A); 5531; 5536.
\10\ See 12 U.S.C. 5481(26); 5531; 5536. As the CFPB has
explained, discrimination may constitute an unfair act or practice
that violates the CFPA's UDAAP prohibition. See CFPB UDAAP Exam
Manual (updated Apr. 11, 2022).
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The CFPA defines a service provider as ``any person that provides a
material service to a covered person in connection with the offering or
provision by such covered person of a consumer financial product or
[[Page 50558]]
service.'' \11\ The term ``service provider'' includes, but is not
limited to, a person that ``participates in designing, operating, or
maintaining the consumer financial product or service'' or ``processes
transactions relating to the consumer financial product or service.''
\12\ The term ``service provider,'' however, ``does not include a
person solely by virtue of such person offering or providing to a
covered person'' either ``a support service of a type provided to
businesses generally or a similar ministerial service,'' or ``time or
space for an advertisement for a consumer financial product or service
through print, newspaper, or electronic media.'' \13\
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\11\ 12 U.S.C. 5481(26)(A).
\12\ 12 U.S.C. 5481(26)(B)(i), (ii). Of course, nothing in this
interpretive rule precludes a digital marketing provider from being
considered a covered person based on its acts and practices. Indeed,
by engaging in consumer data collection, tracking, analysis, and
maintenance activities, digital marketing providers may be covered
persons. See 12 U.S.C. 5481(15)(A)(ix).
\13\ 12 U.S.C. 5481(26)(B)(i), (ii).
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Material Service
When digital marketing providers are materially involved in the
development of content strategy, they typically provide a material
service. Unlike most traditional media sources, digital marketing
providers engaged in ad targeting and delivery are not solely providing
airtime or physical space for ads. Rather, digital marketers commingle
the targeting and delivery of advertisements with the provision of
``time or space.''
A ``material'' service is a service that is significant or
important.\14\ When digital marketers identify or select prospective
customers and/or select or place content to affect consumer engagement,
including purchasing or adoption behavior, they are providing a
significant--and thus ``material''--service provided to covered
persons. In particular, identifying prospective customers and then
attempting to acquire those customers is a significant component of the
``offering'' of a consumer financial product or service, which is part
of the legally relevant test for determining that a firm is a ``covered
person.'' \15\
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\14\ See Merriam Webster's Dictionary (online ed.) (defining
``material'' as ``having real importance or great consequences'');
Black's Law Dictionary (11th ed. online) (defining ``material'' as
``significant; essential'').
\15\ See 12 U.S.C. 5481(6).
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Indeed, modern digital ad targeting and content delivery typically
consists of many functions--such as lead generation,\16\ customer
acquisition, or marketing analysis or strategy--that would often be
performed by covered persons. For example, a covered person may measure
the effectiveness of certain marketing efforts by calculating a
``customer acquisition rate.'' \17\ Similarly, a covered person's
marketing group may analyze where to purchase advertising across
multiple channels to maximize impact.\18\ The involvement in the
development of content strategy by digital marketing providers
increasingly resembles these functions and others often performed by
covered persons themselves (although the services are often carried out
in a more sophisticated way, based on the digital marketers' data and
technology). Accordingly, digital marketers that are materially
involved in the development of content strategy by identifying or
selecting prospective customers and/or selecting or placing content to
affect consumer engagement, including purchasing or adoption behavior,
typically provide a material service.
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\16\ See, e.g., Complaint for Violations of the Consumer
Financial Protection Act of 2010, Consumer Fin. Prot. Bureau v. D
and D Marketing, Inc., No. 2:15-cv-9692 (filed Dec. 17, 2015),
<a href="https://files.consumerfinance.gov/f/201512_cfpb_complaint-v-d-and-d-marketing-inc-et-al.pdf">https://files.consumerfinance.gov/f/201512_cfpb_complaint-v-d-and-d-marketing-inc-et-al.pdf</a> (alleging that a lead aggregator is a
``service provider'' because it sold consumer loan applications as
``leads'' to payday and installment lenders who are ``covered
persons'').
\17\ See, e.g., Jacquelyn S. Thomas, Werner Reinartz, and V.
Kumar, ``Getting the Most out of All Your Customers,'' Harvard
Business Review (July-August 2004) (noting that ``most companies
still use the customer acquisition rate'').
\18\ See, e.g., Wes Nichols, ``Advertising Analytics 2.0,''
Harvard Business Review (March 2013) (noting that ``most businesses
still . . . measured how [their] TV, print, radio, and online ads
each functioned independently to drive sales'').
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``Time or Space'' Exception
As noted above, the CFPA provides that the term service provider
``does not include a person solely by virtue of such person offering or
providing to a covered person'' either ``a support service of a type
provided to businesses generally or a similar ministerial service,'' or
``time or space for an advertisement for a consumer financial product
or service through print, newspaper, or electronic media.'' \19\ The
reference to ``solely'' providing ``time or space for an
advertisement'' means that digital marketers that provide additional
services beyond ``time or space''--i.e., beyond airtime or physical
space for the ad--do not qualify for the exception. Accordingly, when
digital marketers are materially involved in the development of content
strategy in addition to providing airtime or physical space, they fall
outside the exception for ``solely'' providing ``time or space.''
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\19\ 12 U.S.C. 5481(26)(B)(i), (ii).
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The ``service provider'' definition should be interpreted as a
cohesive whole.\20\ Thus, the ``time or space'' exception should be
interpreted alongside its inclusion with the exception for ``a support
service of a type provided to businesses generally or a similar
ministerial service.'' \21\ Firms that provide a ``ministerial''
service to financial institutions are not materially involved in the
marketing or distribution of the consumer financial product or service;
they are not typically involved in the identification or selection of
prospective customers, nor do they select or place content to affect
consumer engagement. For example, a firm that furnishes broadband
access to a financial institution is not involved in the strategic
marketing and distribution of the consumer financial product or service
and is generally not providing a material service.
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\20\ See, e.g., Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 569
(1995) (noting that ``the Act is to be interpreted as a symmetrical
and coherent regulatory scheme'').
\21\ 12 U.S.C. 5481(26)(B)(i), (ii).
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Additionally, the ``time or space'' exception refers to
``electronic media'' within the phrase ``print, newspaper, or
electronic media.'' \22\ This phrasing--especially alongside the other
exemption for ``a support service of a type provided to businesses
generally or a similar ministerial service''--indicates that the ``time
or space'' exception should be interpreted to refer to the offering of
advertising in a manner similar to that was generally performed by
traditional media sources, such as ``print'' or ``newspaper.'' \23\ A
traditional media source typically provided ``time or space''--i.e.,
the airtime or physical space for the ad--with relatively little (i.e.,
largely ``ministerial'') involvement in the development of content
strategy.\24\
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\22\ 12 U.S.C. 5481(26)(B)(i).
\23\ Cf. Gustafson, 513 U.S. at 576 (``[T]he term `written
communication' must be read in context to refer to writings that,
from a functional standpoint, are similar to the terms `notice,
circular, and advertisement.' '').
\24\ 12 U.S.C. 5481(26)(B)(i), (ii).
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To be sure, some traditional media sources may have been involved
in the selection of the audience for or content of ads to some degree
(such as by allowing businesses to select advertising space in a
geographic-specific section of a newspaper to businesses operating in
that geographic area or putting advertisements for financial services
in the financial section of the newspaper). But traditional media
sources were typically not materially involved in the development of
content strategy; in the main, their function was solely to provide
``time or space'' by operating as
[[Page 50559]]
passive conduits of information provided by their customers.
Indeed, when digital marketers are materially involved in the
development of content strategy, the marketers perform functions that
would often traditionally be undertaken by the covered person itself,
rather than by a traditional media outlet. For example, as noted above,
a covered person's marketing group may analyze where or when to
purchase advertising across multiple channels to maximize impact.\25\
Of course, covered persons may sometimes engage third-party vendors for
these activities. For example, they may engage an advertising or
consulting firm to perform marketing analysis. But this would not
typically be a service that was performed by a traditional media
source, such as a newspaper or radio station. The enterprises or firms
providing these services may be ``service providers'' under the CFPA,
but a media source that merely provided airtime or physical space would
fall into the ``time or space'' exception and would not be a service
provider.
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\25\ See, e.g., Wes Nichols, ``Advertising Analytics 2.0,''
Harvard Business Review (March 2013) (noting that ``most businesses
still . . . measured how [their] TV, print, radio, and online ads
each functioned independently to drive sales'').
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Specific Circumstances
The conduct of digital marketers that provide services to covered
persons varies widely and, depending on the conduct, may or may not
fall within the ``time or space'' exception. Under the interpretation
of the definition of ``service provider'' described above, the role
played by the digital marketing provider--i.e., whether the digital
marketing provider is materially involved in the development of content
strategy by identifying or selecting prospective customers and/or
selecting or placing content to affect consumer engagement--will
determine whether the advertiser falls within the ``time or space''
exception. Increasingly, the role typically played by digital marketers
fall outside the exception and the digital marketers are typically
service providers under the CFPA.
In certain circumstances, the digital marketing provider is only
minimally involved in identifying or selecting prospective customers or
selecting or placing content to affect consumer engagement. For
instance, digital marketers may offer covered persons the ability to
choose to run an advertisement on a particular web page or application
of the covered person's choosing, with advertisements seen by any user
of that page or application. In these circumstances, the digital
marketer would typically fall within the ``time or space'' exception.
The digital marketer in this situation is ``solely'' providing ``time
or space'' for the ad, in the sense of airtime or physical space for
the ad, without commingling targeting or delivery of the
advertisements. Moreover, the digital marketer's conduct in these
circumstances is similar to a traditional media source (such as a
newspaper or radio station) that offered advertisements directed at a
particular market of the covered person's choosing, rather than a
function traditionally performed by a covered person itself.
Digital marketing providers may also target and deliver the
advertisements to users with certain characteristics (such as
demographics, geography, online behavior (such as particular keyword
searches), or offline behavior). In some circumstances, the covered
person may provide an audience of existing users and specify that
advertisements be provided to similar consumers. While the covered
person may specify certain parameters of the intended audience for a
specific consumer financial product or service, it is the digital
marketers' ad targeting and delivery algorithms that identify the
audience with the desired characteristics and determine whether and/or
when specific consumers see an advertisement.\26\
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\26\ See, e.g., Charge of Discrimination at 5 ] 17, Facebook,
Inc., No. 01-18-0323-8 (Dep't of Hous. & Urban Dev. Mar. 28, 2019),
<a href="https://www.hud.gov/sites/dfiles/Main/documents/HUD_v_Facebook.pdf">https://www.hud.gov/sites/dfiles/Main/documents/HUD_v_Facebook.pdf</a>.
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Digital marketing providers do not fall within the ``time or
space'' exception if they target and deliver advertisements to users
with certain characteristics, even if those characteristics are
specified by the covered person. In these circumstances, although the
covered person also plays a role, the digital marketer selects,
including through its algorithms and data, the specific audience that
sees the advertisement for the covered person's consumer financial
product or service. The selection of specific consumers to see specific
ads goes beyond solely selling airtime or physical space as performed
by traditional media sources such as newspapers or radio. When digital
marketers target and deliver advertisements to users with certain
characteristics, the digital marketer is materially involved in the
development of content strategy and is not covered by the ``time or
space'' exception.
Moreover, when digital marketers target and deliver advertisements
to users with certain characteristics, the selection of the audience
through algorithms and data is akin to a customer acquisition function
that would traditionally be performed in-house by a covered person (or
a vendor other than a traditional media source, such as a consulting
firm). Accordingly, digital marketers that target and deliver
advertisements to users with certain characteristics specified by the
covered person are typically service providers under the CFPA.
Similarly, digital marketing providers do not fall into the ``time
or space'' exception if a covered person identifies particular users by
name and the digital marketer targets and delivers the advertisements
to those users at specific times to increase or maximize engagement.
The provision of the service of analyzing when advertisements should
appear goes beyond ``solely'' selling airtime or physical space as
performed by traditional media sources such as newspapers or radio. To
be sure, a traditional media source might have provided some basic
information to firms about when to air particular advertisements, but
the business purchasing the ad was generally the entity that made the
decision about when and where to place the ad. Here, the use of
algorithms and business-specific data to determine when to display a
specific business' ads to specific consumers to affect consumer
engagement extends well beyond the activities performed by a
traditional media source.
There are also circumstances in which the digital marketing
provider plays an even more significant role in determining which
specific consumers see digital advertisements, such as by determining
or suggesting to the covered person which users are the most
appropriate audience for the covered person's advertisements (rather
than receiving such direction from the covered person). Digital
marketers may determine who is the appropriate audience to receive ads
based on, for instance, the content of the particular ad, the type of
businesses being advertised, the marketer's own knowledge of a
particular user's characteristics and behavior (including offline
behavior), the behavior of other users, and past user engagement with
similar types of ads.\27\
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\27\ See, e.g., Charge of Discrimination at 4 ] 16, Facebook,
Inc., No. 01-18-0323-8 (Dep't of Hous. & Urban Dev. Mar. 28, 2019),
<a href="https://www.hud.gov/sites/dfiles/Main/documents/HUD_v_Facebook.pdf">https://www.hud.gov/sites/dfiles/Main/documents/HUD_v_Facebook.pdf</a>.
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In circumstances such as these in which a digital marketing
provider plays an even more significant role in
[[Page 50560]]
determining which specific users see digital advertisements, such as by
determining or suggesting which users are the appropriate audience for
advertisements, the digital marketer does not fall within the ``time or
space'' exception and is typically a service provider under the CFPA.
Determining which users are the appropriate audience for a particular
covered person's advertisement is well beyond providing airtime or
physical space. To the contrary, determining the appropriate audience
is much more similar to the function traditionally performed by a
covered person's own customer acquisition or marketing group than by a
traditional media source. Indeed, identifying or selecting prospective
customers for a covered person's business is similar to the function of
a ``lead generator'' that would be considered a service provider under
the CFPA. Accordingly, digital marketers that, for example, determine
or suggest which users are the appropriate audience for advertisements
are materially involved in the development of content strategy, do not
fall under the ``time or space'' exception, and are typically service
providers under the CFPA.
III. Regulatory Matters
This is an interpretive rule issued under the Bureau's authority to
interpret the CFPA, including under section 1022(b)(1) of the CFPA,
which authorizes guidance as may be necessary or appropriate to enable
the Bureau to administer and carry out the purposes and objectives of
Federal consumer financial laws, such as the CFPA.\28\
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\28\ 12 U.S.C. 5512(b)(1).
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As an interpretive rule, this rule is exempt from the notice-and-
comment rulemaking requirements of the Administrative Procedure
Act.\29\ Because no notice of proposed rulemaking is required, the
Regulatory Flexibility Act does not require an initial or final
regulatory flexibility analysis.\30\ The Bureau also has determined
that this interpretive rule does not impose any new or revise any
existing recordkeeping, reporting, or disclosure requirements on
covered entities or members of the public that would be collections of
information requiring approval by the Office of Management and Budget
under the Paperwork Reduction Act.\31\
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\29\ 5 U.S.C. 553(b).
\30\ 5 U.S.C. 603(a), 604(a).
\31\ 44 U.S.C. 3501-3521.
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Pursuant to the Congressional Review Act,\32\ the Bureau will
submit a report containing this interpretive rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to the rule's
published effective date. The Office of Information and Regulatory
Affairs has designated this interpretive rule as not a ``major rule''
as defined by 5 U.S.C. 804(2).
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\32\ 5 U.S.C. 801 et seq.
Rohit Chopra,
Director, Consumer Financial Protection Bureau.
[FR Doc. 2022-17699 Filed 8-16-22; 8:45 am]
BILLING CODE 4810-AM-P
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